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[2024] ZALMPPHC 63
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Kota v S (A23/2023) [2024] ZALMPPHC 63 (31 May 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: A23/2023
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
Date:
31/25/24
In
the matter between:
SHIMANE
FRANS KOTA
APPEALLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
MAPHELELA
AJ
[1]
This is an appeal by the appellant against both the Conviction and
the sentence by the Magistrate
Court for the regional district of
Mogalakwena held at Mahwelereng. The appellant was found guilty of
rape and house breaking with
intend to rape and the rape. As a
result, the appellant was sentenced to life imprisonment for rape.
[2]
The appellant had pleaded consensual sexual intercourse and alleges
that the complainant was his
girlfriend. The court
a quo
had
to determine whether the elements of consent had been satisfied.
[3]
It is therefore not necessary to deal with all the circumstances
leading to the alleged rape.
Both the appellant and the Complainant
gave evidence during the hearing of this matter and upon fully
assessing the matter, the
appellant was found guilty and sentenced
accordingly.
[4]
The question to be determined by the court
a quo
was whether
there was consensus for the parties to have gotten into sexual
activities on the day in question. The appellant agreed
to have
engaged with consensual sexual intercourse with the complainant while
the complainant indicated that, there was no such
consensus and that
she did not invite the appellant to her place on the day in question
nor knew his identity until he was identified
at his home with the
underwear he was wearing on the day in question.
[5]
The appellant’s counsel did not make much of the submission
during the appeal hearing. The
counsel submitted that based on the
evidence of a single witness, the cautionary rule should have been
applied. Despite the evidence
of the complainant not been
corroborated, the court
a quo
should have found the appellant
not guilty. He further submitted that the complainant could not
identify the person who raped her
except that they had to follow the
footsteps until they arrived at the appellant’s place and found
him sleeping.
[6]
The appellant’s counsel further submitted that there was bad
blood between the appellant
and the complainant in that, he always
proposed to her all the time when she goes to the shops. For that
reason, it was submitted
that the complainant had a motive to lay
charges against him. This submission goes against the appellant’s
submission in
that he says that there was consensus that they had
sexual intercourse and if on the other hand she had a motive to
incriminate
him because he was proposing love to her, it will
automatically mean that there was no consensus because this statement
says the
complainant laid charges because she had a bad blood
relationship.
[7]
The appellant in his evidence testified that the complainant was his
girlfriend and that they
had consensual sex on the night in question
after he was invited by the complainant. The appellant denies
breaking and entering
the complainant’s house on the night in
question. He further testfied that post the sexual activity they
slept and only in
the morning they fought about money problem.
[8]
Reference was made to the case of
Woji
v Santam insurance Co Ltd
[1]
where
the following was stated, “
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The
trial judge
will weigh his evidence, will consider its merits and demerits and
having done so, will decide whether it is trustworthy
and whether
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told.”
[9]
The appellant further referred the appeal court to the case of
S
v Webber
[2]
,
where
the court held that “
A
conviction is possible on the evidence of a single witness. Such
witness must be credible, and the evidence should be approached
with
caution. Due consideration should be given to factors which affirms,
and factors which detract from the credibility of the
witness. The
probative value of the evidence of a single witness should not be
equated to that of several witnesses”.
[10]
The appellant’s counsel further submitted that the
contradictions in his evidence were not material
for one to conclude
that his version is not reasonably possibly true. Reference was also
made to the case of
State
v V
[3]
where
the court said the following, “
it
is trite that there is no obligation upon the accused person, where
the state bears the onus, to convince the court. If his version
is
reasonably possible true, he is entitled to his acquittal although
his explanation is improbable. A court is not entitled to
convict
unless it is satisfied not only that the explanation is improbable
but that beyond reasonable doubt it is false. It is
permissible to
look at the probabilities of the case to determine whether the
accused’s version is reasonable possible true,
but one
subjectively believes is not the test”
[11]
On that basis, the appellant prays that both the conviction and
sentence should be set aside.
[12]
The respondent dealt with the issue around the evidence of a single
witness in this case being the complainant.
The respondent referred
to
S
v Sauls and Others
[4]
where
the court said: “There is no rule of thumb test or formula to
apply when it comes to a consideration of the credibility
of single
witness. The trial judge will weigh his evidence, will consider its
merits and demerits and having done so, will decide
whether it is
trustworthy and whether, despites the fact that there are
shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told.
”
[13]
The respondent in her submission submitted that the court
a quo
was alive to the cautionary rule and correctly applied it. It can be
easily deducted from the evidence on record that the complainant
was
reliable, credible, and truthful witness and that there were no
material contradictions in her evidence.
[14]
Counsel for the respondent submitted that the complainant had no
reasons or ulterior motive to implicate
the appellant and that should
that have been her intention, there was nothing which prevented her
to do that from the onset. It
was further submitted that if so, she
could have done so immediately when her neighbor arrives.
[15]
At paragraph 10 and 20 on page 64 Volume 2, the complainant stated
the following in her evidence which I
will quote “
After he
has finished, he started looking around inside the room. My child
woke up, the two-year-old. He started crying; then he
started telling
the child to keep quiet. He grabbed me again. He got erect again and
the climbed-on top of me, and then took his
penis and then inserted
it into my vagina”.
[16]
“After he had finished, he got off. He started to… Then
he was intending to leave. I heard a
door being closed”.
[17]
It is also important to also note that, the appellant has used the
knife against the complainant and according
to evidence there were
stab wounds on her hands. It is not clear why would the appellant use
the knife on a woman. He alleges that
she was becoming violent as she
was demanding the money from him, and he picked up the knife from the
house which he used. There
is no explanation in his evidence as to
why did he took the knife with him since it was found by the Police
in his room where they
found him after the alleged rape incident.
[18]
There is no indication from the appellant as to why he decided to use
the knife against the complainant,
what he alleges is that she was
becoming violent demanding the money after sexual intercourse. There
is no indication as to how
violent she was and if she had any
dangerous weapon in her possession. The appellant could have made an
option to run away if she
was becoming violent. As I have indicated
all these are not mentioned in the appellant’s evidence.
[19]
In this instance it is clear that there was no consent from the
respondent. In the case of
Mugridge
v State
[5]
the
court said the following regarding consent at paragraph (40) “
The
law requires further that consent be active, and therefore mere
submission is not sufficient
”
.
In Rex v Swiggelaar, Murray AJA commented as follows: “
The
authorities are clear upon the point that though the consent of a
woman may be gathered from her conduct, apart from her words,
it is
fallacious to take the absence of resistance as per se proof of
consent. Submissions by itself is no grant of consent, and
if a man
so intimidate a woman as to induce her to abandon resistance and
submit to intercourse to which she is unwilling, he commits
the crime
of rape. All the circumstances must be taken into account to
determine whether passively is proof of implied consent
or whether it
is merely the abandonment of outward resistance which the woman,
while persisting in her objection to intercourse,
is afraid to
display or realizes is useless’.
[20]
In the current case it is very clear that the complainant was
resisting the rape by the appellant hence,
the use of the knife on
her with no reasonable explanation by the appellant why was the knife
used where it is very clear that
at no stage did she overpower the
appellant or posed any danger to the him.
[21]
S
v Van der Meyden
[6]
the court stated that “
What
must be born in mind, however, is that the conclusion which is
reached (whether it be to convict or acquit) must account to
all the
evidence”
Both
parties have referred to this case law. The question which now this
court must answer with respect to all the evidence given
during the
trial is whether the court
a
quo
has
considered the evidence before it in its entirety.
[22]
It also follows from the facts that the onus rests on the state to
prove the guilt of the accused beyond
reasonable doubt, that no onus
rests on the accused to prove his or her innocence. See
S v
Mhlongo
1991 (2) SACR 207
(A), at 210d-f; R v Hlongwane
1959
(3) SA 337
(A), at 340H
it was held that in order to be
acquitted, the version of an accused need only be reasonably possibly
true. The position was set
out by
Nugent J in S v Van Der Meyden
above, where the following was indicated: “
the onus of proof
in a criminal case is discharged by the state to prove the guilt of
an accused person beyond reasonable doubt.
The corollary is that he
is entitled to be acquitted if it is reasonable that he might be
innocent, the process of reasoning which
is appropriate to the
application of that test in any case will depend on the nature of the
evidence which the court has before
it. What must be born in mind,
however, is that the conclusion which is reached (Whether it be to
convict or to acquit) must account
for all the evidence. Some of the
evidence might be found to be false, some might me found to be
unreliable, and some of it might
be found to be only possibly false
or unreliable, but none of it may simply be ignored”.
(See R v Difford
1937
AD 370
at 373 and 383). These are not separate and independent tests,
but the expression of the same test when viewed from opposite
perspectives.
To convict, the evidence must establish the guilt of
the accused beyond reasonable doubt, which will be so only if there
is at
the same time no reasonable possibility that an innocent
explanation which has been put forward might be true. The two are
inseparable,
each being the logical corollary of the other.”
[23]
This was not a normal case where a party must only proof that there
was sexual intercourse between the two
adults where one says I was
raped and the other denies having been involved in sexual activity
with the complainant. It is doubtful
that the complainant in this
case could have provoked the appellant to the extent that he could
have used a knife to scare her.
There is again no explanation in his
evidence as to what action was the complainant doing which posted a
danger to him. The appellant
had an option of running away from her
if there was any threat, there is no indication why he could not stay
away from her but
decided to use the knife.
[24]
The correct approach to the evaluation of evidence in a criminal
trial was enunciated by the court as follows
in
S
v Chabalala
[7]
where
the following was said “
The
trial Court’s approach to the case was, however, holistic and
in this it was undoubtedly right: S v Van Aswagen
2001 (2) SACR 97
(SCA). The correct approach is to weight up all the elements which
point towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strength and weakness, probabilities on both sides and, having
done
so, to decide whether the balance weights so heavily in favour of the
state as to exclude any reasonable doubt about the accused’s
guilt. The result may prove that one scrap of evidence or one defect
if the case for either party (Such as failure to call a material
witness concerning an identity parade) was decisive but that can only
be an ex port facto determination and a trial court (and
counsel)
should avoid the temptation to larch onto one (apparently) obvious
aspect without assessing it in the context of the full
picture
presented in evidence….”
[25]
Under the circumstances I am satisfied that, the court
a quo
had assessed all the evidence before it and after such assessment it
concluded that, the Complainant did not give consent to the
appellant
and as such the appellant was correctly convicted.
[26]
With regard to the sentence, it is trite sentence is within the
discretion of the trial court. It is also
a well-known principle that
the court of appeal does not have unfettered power to interfere with
the sentencing of the trial court.
It may, however, do so when it is
found that the trial court has misdirected itself or if the sentence
imposed was so disturbingly
disproportionate that no reasonable court
would have imposed it. The test is not whether the trial court was
wrong but whether
it has exercised its discretion properly. (See S v
Romer
[8]
).
[27]
S
v Vilakazi
[9]
the
court said the following regarding the personal circumstances in
mitigating of sentence, “The
personal
circumstances of the appellant, so far as they are disclosed in the
evidence, have been set out earlier. In cases of serious
crime the
personal circumstances of the offender, by themselves, will
necessarily recede into background. Once it becomes clear
that the
crime is deserving of a substantial period of imprisonment the
questions whether the accused is married or single, whether
he has
two children or three, whether or not he is employed, are in
themselves largely immaterial to what the period should be,
and those
seems to me to be kind of “flimsy” ground that Malgas
said should be avoided. But they are nonetheless relevant
in another
respect. A material consideration is whether the accused can be
expected to offend again. While that can never be confidently
predict
his or her circumstances might assist in making at least some
assessment. In this case the appellant has reached the age
of 30
without any serious bruises with the law. His stable employment and
apparently stable family circumstances are not indicative
of an
inherently lawless character”.
[28]
The other consideration which the court has considered was the time
the appellant has spent in prison since
after the incarceration. “
At
the time he was sentenced he had accordingly been imprisoned for over
two years. While good reason may exist for denying bail
to a person
who is charged with a serious crime it seems to me that if he or she
is not promptly brought to trial it will be most
unjust if the period
of imprisonment while awaiting trial is not then brought to account
in any custodial sentence that is imposed.
In the circumstances I
intend ordering that the sentence which for the purpose of
considering parole is a sentence of fifteen years
imprisonment
commencing on the date that the appellant was sentenced, is to expire
two years earlier than would ordinarily have
been the case
”
[29]
The court a quo has found that the appellant had raped the appellant
more than once, and had also stabbed
the complainant and inflicted
grievous bodily harm on her. The manner in which the offence was
committed within the ambit in which
the minimum sentence of life
imprisonment is appliacable in terms of the
Criminal
Law
Amendment
Act
[10]
(CLAA) unless the court finds substantial and compelling
circumstances to exists which justify a deviation from the prescribed
minimum sentences.
[30]
Counsel for the appellant has submitted that the appellant was born
on 27
th
April 1980, was 35 years at the time of the
commission of the offence and 43 years at the time of sentencing. The
appellant’s
father had separated with his mother when he was
young, and there was no good relationship between the appellant and
his father.
The appellant had a good relationship with his
stepfather. The appellant was employed as a gardener earning R1000.00
per month.
The appellant was also doing odd jobs generating R6000.00
per month. The appellant had two minor children whom he is
maintaining
and had a good relationship with them even though he is
not a primary caregiver. The appellant is first offender at the age
of
43. Counsel for the appellant submitted that cumulatively taken,
the appellant’s personal circumstances constitute substantial
and compelling circumstances justifying a deviation from the
prescribed minimum sentence of life imprisonment.
[31]
The court
a quo
in sentencing the appellant has taken into
consideration his personal circumstances and the aggravating factors.
The court
a quo
found that rape was prevalent in the area of
jurisdiction where the victims were raped in their own homestead
where they were supposed
to feel safe like it happened to the
complainant. The appellant took advantage of the complainant after
seeing that the complainant
was left alone with her child. What
aggravates was that the complainant was raped in her home where she
was supposed to feel free
and protected. The appellant raped and
stabbed the complainant which had left a lifelong scar on her. The
complainant was violated
in the presence of her own child, even
though there is no evidence that the child had witnessed that.
[32]
After weighing the accused personal circumstances and aggravating
factors, the court
a quo
found that there were no substantial
and compelling circumstances justifying a deviation from the
prescribed minimum sentence of
life imprisonment. The question which
this court had to decide is whether the trial court had exercised its
discretion properly.
According to the presentence report, the
appellant does not acknowledge the offences he had committed. That
shows that the appellant
is not remorseful for what he did. What
aggravate the most is that after raping the complainant, the
appellant had stabbed complainant
for no apparent reason, and did not
even assist the complainant in getting medical attention. The
appellant did not use a condom
risking infecting the complainant with
all sorts of illness/diseases. The appellant had raped the
complainant in the comfort of
her home where she was supposed to feel
safe.
[33]
In
S
v Chapman
[11]
the court said:
“
The
courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights”.
[34]
What the appellant had submitted as constituting substantial and
compelling circumstances, are what has been
held in Vilakazi case
above, to be largely immaterial and seems to be the kind of “flimsy”
ground that Malgas said
should be avoided. The appellant had a good
relationship with his stepfather, and therefore did not lack a father
figure to give
him guidance. He simply chose to follow the wrong
path. The aggravating factors far outweigh the mitigating factors. In
my view,
the court
a quo
had correctly exercised its
discretion in this matter and there is nothing to fault it. It
follows that the appeal on sentence
stands to fail.
[35]
In the result the following order is made:
35.1 The appeal on both
conviction and sentence is dismissed.
ACTING
JUDGE MAPHELELA
JUDGE
OF THE HIGH COURT, POLOKWANE;
LIMPOPO
DIVISION
I
AGREE
JUDGE
KGANYAGO
JUDGE
OF THE HIGH COURT, POLOKWANE;
LIMPOPO
DIVISION
APPEARANCES
FOR THE
APPELLANT
MR R MACHOVANI
INSTRUCTED BY
MACHOVANI
ATTORNEYS
FOR THE
RESPONDENT
ADV SB RANGOATO
INSTRUCTED BY
STATE ATTORNEYS
DATE OF HEARING
22
ND
MARCH 2024
DATE OF
JUDGEMENT
31 May 2024
[1]
1981
(1) SA 1020
(A) at 1028 B-D and S v Souls and others 1991 (3) SA
172(A)
[2]
1971
(3) 754 (A) at 758
[3]
2000
(1) SACR 453
(SCA) at 455 B
[4]
1981
3 SA 172
(A) held at 18E-G
[5]
(657/12)[2013]
ZASCA 43;2013(2) SACR 111(SCA)(28 March 2013)
[6]
1999
(1)SARC 447 (w) Negent, S v Trainor
2003 1 SACR 35
(SCA) at 40f-41C
[7]
2003
(1) SACR 134
(SCA) para 15
[8]
2011
(2) SACR 153
(SCA) at paras 22 and 23
[9]
(576/07)
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA); 2009(1)ASRC 552
(SCA);2012 (6)SA 353 (SCA) (3 September 2008) at paragraph 58
[10]
105
of 1997
[11]
1997
(3) SA 345
(SCA) at 345D